Supreme Court New South Wales Medium Neutral Citation: Santos by his tutor McGuinness v St Vincent's Hospital Sydney Ltd [2022] NSWSC 893 Hearing dates: 16 June 2022 Date of orders: 16 June 2022 Decision date: 16 June 2022 Jurisdiction: Common Law Before: Hamill J Decision: (1) The notice of motion filed on 16 June 2022 is dismissed. (2) No order as to costs. Catchwords: CIVIL PROCEDURE – prior court approval of settlement – application for orders for moneys to be paid out of court to person other than the plaintiff – application dismissed Category: Procedural rulings Parties: Luiz Batista Santos by his tutor Robyn McGuiness (Plaintiff) St Vincent's Hospital Sydney Ltd (Defendant) Representation: Counsel: M Robinson (Plaintiff) No appearance (Defendant) Solicitors: Longton Legal (Plaintiff) McCabe Curwood (Defendant) File Number(s): 2018/390721 Publication restriction: The terms of the settlement previously approved by the Court have been redacted. EX TEMPORE Judgment (REVISED) 1. The Court is confronted here with a very difficult and delicate situation, and it arises in these circumstances. In December 2018, the plaintiff, Mr Santos by his tutor Ms McGuinness, commenced proceedings against St Vincent's Hospital for professional medical negligence which resulted in, on the plaintiff's case, a serious brain injury, to use very loose terminology. 2. The matter proceeded through to the pleading stage and there were issues in relation to liability and causation. As a result, on the advice of his legal representatives, and again by his tutor, Mr Santos entered an agreement with the defendant to accept a substantially compromised sum by way of damages. The matter came before Justice Wright on 18 February 2022. A confidential advice of counsel and senior counsel was provided to his Honour and his Honour approved the settlement. 3. The money subject to that settlement has since been paid into Court and the matter comes before me today in the duty list by way of an amended notice of motion seeking orders for payment of the funds out of Court in the following terms: 1. That $xxxxxxxxxx be paid to the plaintiff's solicitors; and 2. That $xxxxxxxxxx be paid to Hans Eriksson to be invested in accordance with the statement of advice prepared by Sakshi Bagaria of Advise Wise. 1. The notice of motion is supported by four affidavits. The first is that of the plaintiff's solicitor, Ms Green. It sets out the background of the matter, the approval of the settlement and the circumstances in which these orders for distribution of the funds are sought. 2. The second is an affidavit of the plaintiff's long-term partner, Hans Eriksson, setting out the background to the relationship and the circumstances of he and the plaintiff, both personal and financial. 3. There is then an affidavit of a financial advisor, Sakshi Bagaria, which sets out the circumstances in which she came to advise Mr Eriksson and Mr Santos as to the best way for them to secure as best they can their financial security going into the future, and annexing a full financial planning advice document. 4. Finally, there is an affidavit of the plaintiff's tutor, which again sets out the background to the relationship between Mr Santos and Mr Eriksson, her observations of that relationship, the circumstances that now exist and her approval, as tutor to the plaintiff, of the arrangement proposed. 5. At the beginning of this judgment I said it was a difficult matter. The reason for that is I have no doubt, based on the evidence that I have read in those affidavits, of the complete goodwill of Mr Eriksson, and further that he has, as it was put by counsel this morning, selflessly taken care of the plaintiff for many many years, for 15 years, and that his current intention is to continue to do that. 6. There is a particular complication in the distribution of the money currently held by the Court in that, because of the amount of the settlement, the plaintiff's entitlement to certain Centrelink benefits will be lost when that money is distributed. The money, in a sense, is already in his hands, but the money is still held with the Court. I am told and accept that the plaintiff initially lost his Centrelink benefits because the settlement had been reached. 7. I am told and accept that the Centrelink benefits have since resumed, but if orders were made for payment directly to, or for the benefit of, the plaintiff, there is probably more than a risk, probably a certainty, that those Centrelink benefits would be lost because of the assets test involved. All of that is set out in more detail in the affidavit material that is before the Court. 8. That puts the couple in a precarious financial position and on instructions, and again I accept this unreservedly, Mr Robinson who appears for the plaintiff has communicated Mr Eriksson's concerns that they would be placed in a position where they would lose their public housing accommodation because of the loss of that Centrelink benefit. 9. This makes the matter extremely difficult of resolution. At this stage, those representing the plaintiff have been unable to formulate any other solution than the one currently proposed. The idea is that the money be paid to Mr Eriksson, that it be invested between the superannuation funds of both partners, more to Mr Eriksson because he will be able to access those funds sooner because of his age, but more particularly by distributing the money in that way, so that it doesn't come into the hands of the plaintiff, the access to or availability of the Centrelink benefits would not be jeopardised. 10. The difficulty that I have in making the orders has been, I think bluntly put to counsel today who accepted that the proposal is not free of risk, the risk that the plaintiff's money would be given to somebody else. This is without suggesting for a moment that it is something that is likely to happen, given the history of loving care provided by Mr Eriksson to Mr Santos. And the Court, on the current arrangement, is not protecting the plaintiff, who is a person who I'm told lacks legal capacity and certainly has extremely significant mental health issues. Whilst I, as I have said already, accept Mr Eriksson's goodwill, in fact I admire his stoicism in the face of an extremely difficult circumstance and his compassion and his love for the plaintiff, I simply am unable to be satisfied that this is an appropriate course in spite of the benefits, financial and otherwise, that it would ultimately have for the plaintiff. 11. I can only hope that those charged with the heavy responsibility and burden of representing Mr Santos are able to come up with a solution that is satisfactory and that that can happen quickly. I accept that Mr Robinson as presently advised is unable to formulate that solution. I don't know what can be done about Centrelink and I don't know whether any sort of representations to them get around the problems that currently exist. But, as the situation currently stands, I am not satisfied that it is appropriate to make the orders sought in the notice of motion for payment out of a very large sum of money to somebody other than the plaintiff in the absence of some legally watertight arrangement such as a trust. And I do accept Mr Robinson's submission that a trust arrangement may not, of itself, solve the problem because the beneficiary of that trust would no doubt be the plaintiff. In any event, I am not satisfied these orders should be made. 12. I am told that simply dismissing the notice of motion at this stage will not prejudice either the Centrelink payments in the short term, or the opportunity for the parties, in particular the plaintiff through his tutor, to come to some other arrangement which may satisfy another Judge, or indeed me, that it is appropriate to make the orders, but at this stage the notice of motion is dismissed. There is no order as to costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 August 2022